01a04637
11-02-2000
Steven Centore, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Steven Centore v. Department of Veterans Affairs
01A04637
November 2, 2000
.
Steven Centore,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04637
Agency No. 932135
DECISION
Steven Centore (complainant) filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated June 26, 2000,
finding that it was in compliance with the terms of the December 10,
1999 settlement agreement into which the parties entered.<1> See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
The Agency agrees to use its best efforts to amend the Employee's
employment records as expeditiously as possible to reflect his retirement
as an RN effective June 30, 1997, which is the date on which he is
entitled to an immediate retirement annuity. Any additional time on
the Agency's rolls necessitated by amending the Employee's records will
be designated as leave without pay. The Agency further agrees to make
any contributions necessary to effectuate the Employee's eligibility
for retirement....
The Agency agrees to use its best efforts to assist the Employee in
processing his application for retirement benefits....
The Agency agrees to pay the Attorney Six Thousand Dollars ($6,000.00)
in full settlement of all claims for fees, costs, and expenses incurred in
this case within sixty (60) days of the effective date of this Agreement.
By letters to the agency dated February 15, 2000 and May 1, 2000,
complainant alleged that the agency was in breach of the settlement
agreement, and requested that the agency specifically implement the
terms of the agreement. Specifically, in the February 15, 2000 letter,
complainant alleged that the agency failed to pay his attorney the agreed
upon six thousand dollars within sixty days of the date of the Agreement.
In the May 1, 2000 letter, complainant alleged that the agency failed
to comply with terms (4) and (6) in that despite repeated verbal and
written communications with the agency and OPM, complainant was not able
to verify information concerning the retirement and employment records.
In its June 26, 2000 FAD, the agency concluded that the settlement
agreement had not been breached. The agency only addressed the claim
raised in the February 15, 2000 letter, noting that a check for six
thousand dollars was issued to the attorney on February 14, 2000.
Although the agency acknowledged that this was a few days past the sixty
day time period, it noted that this delay was not a material breach
of the settlement agreement. The agency made no mention of the May 1,
2000 letter, nor of the breach allegations contained therein.
On appeal, complainant acknowledges that the six thousand dollar check
was received, and focuses instead on his allegations of breach due to
the agency's failure to implement terms (4) and (6). Specifically,
complainant noted that the agency breached the settlement agreement
because despite repeated communications with the agency and OPM, he has
been unable to verify whether: (1) the agency has properly completed
all of the preliminary paperwork regarding his employment records which
is a necessary prerequisite for complainant's retirement application;
(2) a properly completed retirement package (with all appropriate
contributions) has been sent by the agency to OPM; (3) OPM has received
all of the necessary paperwork and/or documentation from the agency;
and (4) any retirement issues remain unaddressed. While acknowledging
that no time period for completing the agreed upon tasks was specified,
complainant notes that a reasonable time period is presumed and that
the agency has not taking any steps to abide by terms (4) and (6) for
seven months. Complainant notes that the agency did not respond to his
May 1, 2000 notice of breach.
The agency's response again focuses solely on the issue of whether the
attorney received the agreed upon fees and costs. The agency also notes
that it did not receive a copy of the Notice of Appeal or a copy of the
appeal statement.
FINDINGS AND ANALYSIS
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
Turning first to complainant's claim that the agency breached the
agreement when it did not pay his attorney the agreed upon attorney's
fees and costs within the sixty day time period noted in the agreement,
we find that the agency correctly determined that this does not constitute
a breach of the agreement. We note that complainant himself appears
to have conceded this point in his appeal statement. Moreover, the
Commission has previously found substantial compliance with the terms of
a settlement agreement in cases where agencies have committed, in good
faith, a technical breach of a provision of the agreement which did not
undermine its purpose or effect. See Sortino v. United States Postal
Service, EEOC Request No. 05950721 (November 21, 1996), citing Baron
v. Department of the Treasury, EEOC Request No. 05930277 (September 30,
1993) (Two week delay in transfer of official and letter of regret rather
than letter of apology found to be substantial compliance). Here, it
is undisputed that the agency issued complainant's attorney a check for
the entire amount of the agreed upon attorney's fees and costs within
a few days of the expiration of the sixty day time period. The agency
noted that the delay was due to administrative processing and complainant
offered nothing to indicate that the agency acted in bad faith.
In regard to complainant's other allegations of breach, we note that
the settlement agreement did not include a specific date by which the
agency was to have complied with these terms. Commission precedent
holds, however, that a provision without time periods is generally
understood to require compliance within a reasonable amount of time.
See Gomez v. Department of Treasury, EEOC Request No. 05930921 (February
10, 1994). Here, complainant alleged that during the seven months since
the execution of the settlement agreement, he has repeatedly communicated
with the agency verbally and in writing, but has been unable to learn the
status of his retirement application or even if the agency has forwarded
the appropriate papers to OPM. The agency offered nothing to suggest
that it has done anything to attempt to carry out these terms of the
settlement agreement, much less that it has used its �best efforts� to
�expeditiously� do so. The agency offered no explanation as to why, after
seven months, it has not taken any steps to carry out these terms.<2>
Accordingly, we agree with complainant that the agency's failure to take
the actions required by the settlement agreement seven months after its
execution constitutes a breach of that agreement. We therefore REVERSE
the agency's finding that it did not breach the settlement agreement.
Complainant has requested specific performance of the settlement
agreement. Consequently, on REMAND, the agency shall comply with the
terms of the settlement agreement as ORDERED below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall implement the terms of the settlement agreement entered
into with complainant on December 10, 1999. Such implementation shall
include, but is not limited to, providing complainant with a written
reply as to whether: (1) the agency has properly completed all of
the preliminary paperwork regarding his employment records which is
a necessary prerequisite for complainant's retirement application;
(2) a properly completed retirement package (with all appropriate
contributions) has been sent by the agency to OPM; (3) OPM has received
all of the necessary paperwork and/or documentation from the agency;
and (4) any retirement issues remain unaddressed. The agency shall
provide the Commission with proof of its implementation of the agreement,
as set forth below. This proof shall include, but is not limited to,
providing the Commission with a copy of the written response to the
above questions.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_November 2, 2000_________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 As stated above, the agency never responded to the May 1, 2000
notice of breach. However, as this breach notice was addressed to the
same individual and office as the February 15, 2000 breach notice, it
appears that complainant followed the appropriate process in notifying
the agency of his breach allegations. Furthermore, although the agency
contends that it did not receive complainant's Notice of Appeal or
appeal statement, the appeal statement includes a certificate of service
indicating that it was faxed to the appropriate office. Accordingly, we
find that complainant followed the appropriate regulations in notifying
the agency of his breach allegations and forwarding a copy of his appeal
statement to the agency.